Response to IEO Concerns Regarding the UN Norms for Business
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Response to IOE/ICC Concerns Regarding the UN Norms for Business
Chip Pitts1 March 2004 [email protected]
The following points respond to the concerns raised by the International Organization of Employers (IOE) and the International Chamber of Commerce (ICC) to the United Nations Sub-Commission on Human Rights' "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Respect to Human Rights."2 These IOE and ICC concerns were expressed in a forty-three page document issued in March 2004 (hereafter, "Joint View").
While the Joint View engages in flights of inappropriate rhetoric (that the Norms will undermine human rights and lead to vituperative and unfair condemnation), the more serious objections stem from an outdated but correctable misconception that international law doesn’t reach private actors. Once this misunderstanding is corrected, one hopes that the ICC and IOE will not stand in the way of the Norms, but will realize that they represent an excellent cornerstone in the pathway to a more just and prosperous world that serves the interests both of human rights and business.
1. ALLEGATION: The Norms mistakenly attempt to place human rights obligations on private business actors when international law only applies to relations between states.
The key theme running through the Joint View's attack on the Norms is the argument that only states, and not private businesses or other non-state actors, hold and can hold obligations under international law. The Joint View (at 4) calls it a "legal error" to say that private businesses or other actors can have human rights obligations.
RESPONSE: THE IOE AND ICC ARE INDISPUTABLY WRONG TO SAY THAT (i) THE NORMS NEGLECT THE PRIMACY OF STATE RESPONSIBILITY AND (ii) THAT ONLY STATES HAVE OBLIGATIONS UNDER INTERNATIONAL LAW.
These misconceptions alone show why the Norms are needed. The main flaws in the Joint View's critique that this is the "privatization of human rights" (e.g. at 23-25) stem from these misconceptions.
If leading global employers and business organizations are ignorant of the fact that non-state actors in general, and corporations in particular, have established legal obligations to avoid
1 International Attorney and Businessman, Dallas, Texas (USA); Former Chief Legal Officer, Nokia, Inc.; Member of the International Advisory Network, Business & Human Rights Resource Centre. 2 Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003)(hereafter "Norms"); Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003)(hereafter "Commentary"). complicity in violating human rights, then the education and clarification furthered by the Norms takes on even more importance. The Joint View ignores throughout its attack that the Norms retain the primacy of State responsibility in the very first article. But just as certainly, businesses have existing liabilities for human rights violations: businesses and their officers involved in genocide,3 slavery,4 torture5 and the like can hardly hope to escape liability merely because they act under the corporate form.
The Universal Declaration of Human Rights6 itself imposes obligations on individuals and private organs of society to respect, promote, and secure human rights. The historical ban that arose on the slave trade was of course an early example of prohibiting private business conduct that violated human rights. Many businesses have been and are being sued in various courts around the world for other human rights violations.7 International treaties and customary international law have long placed direct and indirect obligations on private actors, as does common article 3 of the Geneva Conventions with respect to insurgent and rebel groups (“in the case of armed conflict not of an international character”).8 Some treaties place obligations directly on businesses, as with several treaties in the environmental arena,9 as well as human rights instruments like the UN General Assembly resolutions in the 1980's calling on businesses to respect sanctions against South African apartheid. Even the obligations states enforce under international treaties, such as the ILO Conventions but also all the other major human rights treaties, typically extend to ensuring respect for human rights (e.g. nondiscrimination, freedom of association) by non-state actors such as businesses, other organizations, and individuals.10 The UN treaty bodies have often and
3 See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, e.g. art. 4, 78 UNTS 227 (entered into force Jan. 12, 1951)(“persons” committing genocide “shall be punished”). 4 See, e.g., Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 266 UNTS 3, Art. 6 (making “persons” convicted of slave-related offenses liable to punishment). 5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, Dec. 10, 1084, art. 4 (“any person” committing or complicit in torture shall be guilty of offense). 6 Universal Declaration of Human Rights, GA Res. 217A (III), Dec. 10, 1948, UN Doc. A/810, at 71 (1948), e.g. preamble, art. 2, and arts. 29(1) and 30 (hereafter "UDHR"). See also the other two treaties forming with the UDHR the "International Bill of Rights": the International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR. Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNT.S. 171, entered into force Mar. 23, 1976 (hereafter "CCPR"); and the International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 UNGAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 UNT.S. 3, entered into force Jan. 3, 1976 (hereafter "CESCR"). 7 See, e.g., those listed at http://www.worldmonitors.com/legal.html (listing lawsuits pending in the U.S. alone against such major multinationals as ExxonMobil, Talisman, Royal Dutch Petroleum, Coca-Cola, Chevron, Unocal, Pfizer, The Gap, Texaco, and Rio Tinto)(last visited March 17, 2004). 8 E.g. Geneva Convention relative to the Treatment of Prisoners of War, art. 3, 75 UNTX 135, entered into force Oct. 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 3, 75 UNTS 287, entered into force Oct. 21, 1950; see also Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, GA Res. 54/263, May 25, 2000, art. 4(1)(placing obligations on “armed groups that are distinct from the armed forces of a State”); Nuremberg Rules of the International Military Tribunal, in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 279 (noting crimes against peace, war crimes, and crimes against humanity “for which there shall be individual responsibility”). 9 E.g. International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 UNTS 3; Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993, 32 ILM 1228. 10 See, e.g., Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, Arts. 2(e) and 4(c), 1249 UNTS 13 ("any person, organization, or enterprise"); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, Arts. 2(1)d and 5(b), 660 UNTS 195, 5 ILM 352 (1966) (“persons, group, or organization”; “individual, group, or institution”); Declaration on the Elimination of Violence Against Women, Dec. 20, 1993, Art. 4(c) G.A. Res. 48/104, 48 U.N.
2 authoritatively confirmed that such treaties directly apply to businesses, in areas ranging from privacy,11 to food,12 to water,13 to health.14 Proliferating private codes of conduct over the last couple of decades confirm the view that private businesses are subject to human rights obligations. The Norms restate and help further clarify all such obligations.
The Joint View (e.g. at 16) that the Norms should be speaking of merely "ethical" obligations (without teeth), and not legal obligations -- ignores the fact that many provisions of the Universal Declaration (e.g. against torture) and other human rights instruments are considered and have even been held by U.S. and other courts to be customary international law. Moreover, despite the Joint View’s incomplete quote from the UDHR (Joint View at 6, note 7), the individuals and organs of society aren’t asked merely to “strive” to promote respect for human rights, but also “by progressive measures . . . to secure their universal and effective recognition and observance.” These and other strong obligations are in fact legal and not merely ethical. Holding them to be merely ethical in effect denies victims of rights abuses a legal remedy, a position which seems not to disturb the IOE and ICC. One suspects that the IOE and ICC would not be as pleased with this proposition that international law governs only states and not businesses, were those businesses denied the ability to be subjects (and claimants) under such international economic laws as the Convention on the Settlement of Investment Disputes (within the World Bank system), international intellectual property rights backed up by sanctions under the World Trade Organization, or the dispute settlement mechanisms of various trade agreements.
The Joint View perversely argues (e.g. at 17) that the General Assembly in the Human Rights Defenders Declaration15 rejected the idea of imposing human rights obligations on civil society actors. While (like the Norms) this Declaration clearly reaffirms that nation-states retain the primary responsibility to promote and protect human rights, it is worth noting that the Declaration (i) takes the same approach as the Norms (see Norms, art. 1); (ii) explicitly says that nothing therein shall derogate from the provisions of the UDHR or other human rights instruments (including those referencing the obligations of private actors such as businesses and individuals), (iii) is impossible to interpret (as the Joint View tries to interpret it) as in any sense rejecting the obligations of civil society actors such as businesses and non- governmental organizations. Indeed, the very purpose and point of the Declaration was to defend private actors exercising those responsibilities! And article 11 of the Declaration provides that: “Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics.” This actually affirms the existence of international Norms applying to occupational and professional conduct or ethics, contradicting the Joint View that no such norms exist. Article 12 similarly references the right to be protected against acts “perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms”. Finally, Article 18 explicitly recognizes the responsibilities not just
GAOR Suppl. (No. 49) at 217, U.N. Doc. A/48/49 (1993) (covering “private persons”). 11 Human Rights Committee, General Comment 16 (Twenty-third session, 1988). 12 Committee on Economic, Social and Cultural Rights, General Comment 12, Right to adequate food (Art. 11), UN Doc. E/C.12/1999/5 (1999). 13 Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water, UN Doc. E/C.12/2002/11, para. 23 (2002). 14 Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4 (2000). 15 Declaration on the Right and Responsibilities of Individuals, Groups and Organs of Society to Promote Universally Recognized Human Rights and Fundamental Freedoms, GA Res. 53/144 (Dec. 9, 1998).
3 of states, but “[i]ndividuals, groups, institutions and non-governmental organizations,” in promoting human rights and fundamental freedoms. Needless to say, other private actors -- such as armed groups and terrorists -- can also violate human rights, and are proper and important subjects of international law, especially given today's realities.
The Joint View's contradictory and perverse arguments that the Norms "privatize" human rights obligations not only ignore the continued primacy of state responsibility in Norms article 1, but also implicitly justify the Norms. Speaking of the alleged vagueness of the Norms, the Joint View (at 22) argues that "the private duty-bearer is given extraordinary power to determine the obligations of conduct" (more than a laissez-faire regime with no acknowledged laws or standards at all?). The Joint View continues: "[t]his is 'privatization' because it is the function of Government to define the do's and don'ts by enacting civil and criminal laws: it is not the prerogative of private actors." Exactly. Private actors should not be allowed the unconstrained discretion, or untrammeled prerogative, to determine whether they have legal duties. If the application of law to otherwise unaccountable actors is the "privatization" of human rights, that can only be a good thing.
Whereas the Joint View consistently implies that the idea of recognizing private actor liability for human rights violations is wholly outside international law, the UN for decades has wrestled with the scope of the obligations that pertained to transnational corporations (as with the ultimately failed effort of the 70's and 80's to develop a Code of Conduct for Transnational Corporations). And Philip Jessup in the first half of the twentieth century, Theodor Meron and other prominent academics in the second half, could be cited for observations to the effect that private actors cannot be viewed as outside the ambit of human rights law for that law to be effective. As the power of transnational corporations has grown over the last few decades, there has been an explosion of books and scholarship on the liability of these private economic actors.16
Indubitably, rights have classically been seen in opposition to state power (e.g. the U.S. Bill of Rights). And since they have been key human rights violators, states have traditionally and appropriately received the greatest attention. But with the growth in number and power of global businesses, some of which are effectively 'stateless', and dwarf in importance and resources smaller sovereign nations, rights affected by these other concentrations of power take on new importance, as does the increasing awareness of the long-standing reality that private actors have been subjects of international law. A key reason that the prior effort at such a code of conduct failed, by the way, stems from the ideological divisions and anti- corporate attitudes prevailing during the Cold War. With the end of the Cold War and the continued growth in corporate power, the Norms attempt to fill space newly available to recognize the significant and ever-converging degree of consensus in existing international instruments, private codes of conduct, and best practices affecting the obligations of these important private actors.
Although the Joint View notes that the ICC and IOE participate in and support the purely voluntary Global Compact, they incoherently try to use the notion of "complicity" to avoid what would otherwise be the requisite recognition that private businesses have human rights obligations under the Global Compact. (How else could they explain the contradiction in their own commendation of the Global Compact, which recognizes that private businesses have human rights obligations? How else explain how the Global Compact's principles --
16 See, e.g., International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the developing international legal obligations of businesses (2002).
4 which begin in each area with the phrase "Businesses should" -- could possibly be interpreted as not imposing a duty on businesses?)
The IOE and ICC may persist in ignoring the evidence (some of which is cited above) that these are not mere "ethical" duties, which can be ignored at will, but legal duties for which businesses should be held accountable by various mechanisms. It is hard to avoid the conclusion that the IOE and ICC are unfortunately taking refuge in a narrow legal formalism that attempts to restrict international legal duties to states so as to deny what common sense and law know to be true: businesses and other individuals and organs of society of course are human rights "duty-bearers," and of course are able to violate human rights. The Joint View alleges that the Norms distort the ordinary meaning of words and phrases like "human rights"; but to suggest that only states have such duties is the real use of words for other than their ordinary meaning.
The Global Compact's obligation on businesses to "make sure" that they are not directly or indirectly "complicit" in human rights abuses is the same obligation at the core of the Norms (complemented by an affirmative obligation within their sphere of activity and influence to undertake reasonable actions to promote and ensure respect for human rights). The only differences are that (i) the Norms move from the voluntary end of the spectrum closer to the mandatory end (while, in the interests of pragmatic reality, falling short of that goal), and (ii) the Norms are much more detailed and comprehensive in spelling out the sources of law and meaning of the various obligations. The sad reality is that many businesses are left out of a purely voluntary approach like that of the Global Compact. The Joint View's misunderstanding of the notion at the core of its favored Global Compact, including the mistaken assumption that a private actor can only be complicit by 'aiding and abetting' a primary violation by a state,17 again demonstrates the need for the Norms. When the Joint View (e.g. at 32) ignores the continued primacy of state responsibility in article 1 of the Norms, or says that the Norms "privatize human rights" by "placing the entire burden on private business persons", it simply misleads.
It is also significant that the Global Compact office, through its head Georg Kell, has recognized that efforts like the UN Norms can be complementary to the Global Compact, that they will be included in a source-book published in June 2004, and that in any event the Global Compact should not be used (as the IOE and ICC attempt to use it) to undermine normative approaches.18
The Joint View alleges, as an example of only nation-states having human rights obligations, that UN agencies do not permit their employees to assert human rights in labor conflicts. This position would be news to those employees at UN headquarters who have been unionized for the last 50 years and who both have claimed rights and maintain that they still have rights. But even if and to the extent true, it is more an example of the sophistry demonstrating the need for the Norms than a credible reason not to proceed with the Norms.
The Joint View's other ill-considered examples of the supposedly pernicious effects of the Norms similarly demonstrate the need for greater education and implementation of human rights norms by businesses through mechanisms like the Norms. The hypotheticals on pages 22 and 23 of the Joint View all have in common not only obliviousness to the Norm's
17 Joint View, at 6, n.7. 18 See, e.g., http://www.earthrights.org/news/globalcompactlettertoalliance.shtml.
5 recognizing continued state primacy, but also obliviousness to key ways that businesses can violate (or help promote) human rights, which highlights why the Norms are so needed.
The first hypothetical, involving a company rule regarding the prenatal habits of employees at home, assumes a degree of company intrusion into private life that, arguably, both impinges into the province of state responsibility and involves competing rights of pregnant women to control the direction of their own pregnancy. The second hypothetical, involving a company's simplistically invoking the Norms to justify lives lost in confrontations between armed groups and security forces it has hired, fails to raise the very issues (e.g. prior consultation, due diligence, defense vs offense) referenced in the Norms that can help avoid or mitigate such incidents. The third hypothetical, speculating that a soda company would use the Norms as a pretext to justify depleting water for its private business interests at the expense of long-term public interest, again suffers from the defect of ignoring the actual content of the Norms that would condemn such actions. None of these examples recalls that the Norms fully maintain state responsibility for enforcing human rights. And each of them inadvertently demonstrates the clear need for and value of the Norms.
In arguing that the convenient doctrine of "horizontal effects" is "essential" to the "states obligations as duty-bearer", the Joint View (at 4-7) elevates one interpretation of one scholarly doctrine above all the competing views and again denies the reality that private actors have had and have obligations under international human rights and other laws. This fundamental misunderstanding -- that only states have obligations to respect human rights, and businesses have none (e.g. Joint View at 4, 6, 16) -- is not only inaccurate; once it becomes known to the stakeholders or members of the public of any nation that agrees with the IOE/ICC position, the backlash in terms of negative public relations for the organizations and their corporate members, and harsher public sentiment and demands for potentially anti- business regulation, could be significant.
2. ALLEGATION: The Norms put the obligations of government on private businesses.
RESPONSE : ON THE CONTRARY, THE NORMS EXPLICITLY LIMIT BUSINESS OBLIGATIONS TO THEIR RESPECTIVE SPHERES OF ACTIVITY AND INFLUENCE.
The Norms do not "shift the obligations of States to business enterprises," as alleged by the Joint View. In addition to the negative obligation to refrain from direct or indirect complicity in human rights violations (art. 1 and Commentary 1(b)), the Commentary to the Norms also encourages businesses to "use their influence in order to help promote and ensure respect for human rights". This exhortation stems from the real growth in both number and influence of transnational corporations in an age of globalization, but should not be characterized as a "negative approach" (Joint View, at 12) but an affirmative approach that urges businesses to operate in their enlightened self-interest. After all, as even as hard-nosed a character as former General Electric CEO Jack Welch noted in the early 90’s: "I've always believed that the greatest contribution a business could make to society was its own success, which is a fountainhead of jobs, taxes, and spending in the community. I still believe that -- but I don't think that is enough anymore. And I don't believe that even generous financial philanthropy
6 on top of that prosperity is enough. …[T]hese times…will not allow companies to remain aloof and prosperous while the surrounding communities decline and decay."19
Questions certainly remain regarding how businesses should best attempt to exercise the positive influence they may have with governments, in order to contribute to human rights. Businesses today routinely lobby for tax and other self-interested benefits, so not doing so on behalf of human rights indeed could amount to taking a position.20 Contrary to the Joint View (at 24), it thus does "make sense" to recognize the business duty to use influence with governments to promote human rights when the business can do so. (A definition of "respect" that the Joint View omits, in discussing at 24 the phrase "respect human rights," is "due regard or concern"; the Norms assume that businesses can no longer turn a blind eye to human rights concerns within their sphere of activity or influence, but must give them due regard and be concerned about the impact of business actions and omissions affecting human rights).
The obligations that most upset the IOE and ICC in this realm of allegedly "shifting" government obligations to private businesses are those of the CESCR relating to an adequate standard of living. But, as discussed in more detail below, the Norms retain the primary responsibility of nation-states in this as in other realms (art. 1) and have a savings clause (art. 19) to ensure that neither states nor other parties escape their human rights responsibilities.
3. ALLEGATION: The Norms either "change" 21 or create "the appearance" 22 they make a "fundamental change" 23 in international law, by placing "novel" 24 obligations on businesses that are ultimately ill-motivated, ill-conceived, and counterproductive, the practical effect of which will be to "undermine human rights".
In light of the fact that the Norms largely restate existing international legal standards, the contradictory statements in the Joint View that the Sub-Commission "changed" international law by adopting the Norms, or "created the appearance that it has changed international law" are both wrong. The allegation that the Sub-Commission has exceeded its authority (e.g. Joint View, at 16ff) by 'legislating' wholly new, radical standards is similarly revealed as simple hostility to international law and the very notion of corporate accountability.
RESPONSE #1: THE IOE AND ICC ARE BEHIND THE TIMES, AND BEHIND WORLD BUSINESS LEADER OPINION, IN FAILING TO RECOGNIZE THE NEED FOR MORE ETHICAL GLOBALIZATION AND THE INDISPENSABLE ROLE OF HUMAN RIGHTS COMPLIANCE BY BUSINESS IN CONTRIBUTING TO THAT END.
On one hand, the Joint View pays rhetorical homage to economic, social, and cultural rights in the course of criticizing the major human rights organizations for neglecting such rights.25 On the other hand, while the Joint View approvingly cites former U.N. High Commissioner
19 "A CEO Forum: What Corporate Social Responsibility Means to Me; Wanted: Teachers and Leaders," Business and Society Review, No. 81, Spring 1992, p. 88. 20 As business leaders and management gurus well know, a decision not to act is nevertheless a type of decision, with consequences. 21 Joint View, at 30. 22 Joint View, at 17. 23 Joint View, at 17. 24 Joint View, at 18, fn. 19. 25 Joint View, at 11.
7 for Human Rights Mary Robinson on this point, they cite neither her many comments, nor those of the immediate past holder of that position (the late Sergio Vieira de Mello, who was killed in Iraq), to the effect that greater corporate accountability in the field of human rights is essential for more ethical globalization.26
Despite some rhetorical homage to the CESCR, the Joint View singles out for special criticism the obligation in Norms article 8 (deriving e.g. from the UDHR arts. 23(2)27 and 2528, and CESCR art. 7(a)(ii)29) providing for remuneration ensuring an adequate standard of living for workers and their families.30 The Joint View (at 31) criticizes the Norms' incorporation of this right as "irresponsible," but as usual this is because the IOE and ICC neglect the continued primacy of state obligations referenced at the outset of the Norms (art.1, as well as the savings clause in art. 19).
This persistent misreading of the Norms infects the entire Joint View. The obligation of states to ensure an adequate standard of living always necessarily involved assistance from private business wage payors; the Norms do not attempt to impose any particular policy means on states to accomplish this important social end, but they urge businesses to do their part by, essentially, paying a living wage in light of local conditions. (In any event, do the IOE and ICC really want to be in the position of defending wages that are exploitatively low in light of local conditions? How about the other workers rights in Norms arts. 5 to 9? Do the IOE and ICC really want to revert to a point in history when there were no international legal norms against forced labor and slavery (art. 5), exploitative child labor (art. 6), unsafe working conditions (art. 7), exploitative wages (art. 8), and no rights to free association and collective bargaining (art. 9))?
The Joint View also quotes out of context the business obligation (art. 1) to "promote, secure the fulfillment of, respect, ensure the respect of and protect" human rights, ignoring the clear recognition that these obligations are (i) again, subordinate to the "primary responsibility" of states (in the Norms article 1), and (ii) only with respect to the "respective spheres of activity and influence" of transnational corporations and other business enterprises. The suggestions that the Norms place obligations on business much more extensive than those placed on States by key human rights treaties is thus simply false, as is the allegation (e.g. Joint View, at 4, 32) that the Norms leave "the real duty-bearer -- the State -- out of the picture."
Interestingly, the Joint View's attack enshrines the right to development both in its title ("Norms . . .Will Undermine Human Rights, the Business Sector . . . And the Right to Development") and on page one, when it describes the right as the "foundation for the increased enjoyment of the economic and social rights of all individuals." This is the same right that, at other points, the Joint View condemns as vague and unclear in meaning (e.g. at 20) or even "not 'human rights' as that word is commonly understood" (at 25). Other rights 26 E.g. Just months before his death, High Commissioner de Mello noted the need for broader recognition that the rules of fundamental human rights apply to "every armed group, every individual and every collective, every public entity and every private corporation." Message on Human Rights Day (Dec. 10, 2002). 27 "Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity . . . ". 28 "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services." 29 "A decent living for themselves and their families . . ." 30 Obviously, highlighting the wage aspect of the right to an adequate standard of living is not meant to 'ignore' other components, including public goods. To say so (as the Joint View does, at 31) is to construct a straw-man argument, and to ignore the first article of the Norms, which (again) takes pains to emphasize the continued primary responsibility of states.
8 defined as "not human rights" and "legal fictions" include those from international humanitarian law, international refugee law, international labour law, and, indeed, those rights from other relevant instruments adopted within the U.N. system. [Incidentally, the Joint View's alleged discovery of an inconsistency between the formal definition of human rights in the Norms article 23, and the shorthand reference in Norms first article (to "human rights recognized in international as well as national law") truly amounts to fighting phantoms.]
All of these rights are indeed accepted in their essence as human rights by all but a minority of the world's nations and human rights scholars and lawyers. One could be forgiven, given the Joint View’s contradictory reversal of rhetoric but not substantive position, for at least wondering whether the Joint View is sincere in its professed commitment to these rights. Or, frankly, whether the ICC and IOE understand even the basic principles of international human rights.
The truth is that even the world's elite (as reflected in comments of CEO's, governmental leaders, and attendees of such events as the World Economic Forum in Davos, Switzerland) recognizes at least rhetorically the imperative of ethical globalization, and the need for increasingly powerful global business to be part of the solution and not the problem. That was the genesis, in fact, of UN Secretary General Kofi Annan's announcement of the Global Compact at Davos several years ago. Now, enlightened government and business leaders increasingly recognize the need to move beyond purely voluntary methods like the Global Compact, to "soft law" mechanisms between the purely voluntary instruments and a mandatory treaty. Such intermediate instruments offer more concrete and detailed guidance, and a more pragmatic framework, as to what issues to address and how to best address them. Consensus does not yet exist for a hard law treaty on this subject, but the soft law UN Norms are thus a carefully considered and realistic intermediate option that has wide support among civil society organizations and enlightened businesses and governments. The Joint View, however, is that the "UN 'human rights regime' is not the appropriate forum for solving complex issues like trade, labour relations, and the environment." True – the human rights regime cannot expect to "solve" those issues; but it is the best forum for addressing their human rights dimensions.
The Joint View's emphasis (at 33) on the need to assure the rights of corporations -- when corporations already have significant influence e.g. among the world's treasury and finance ministries, legislatures, and international organizations like the International Monetary Fund and the World Bank -- only confirms how out-of-touch the IOE and ICC are on these issues.
RESPONSE #2: THE IOE AND ICC MISUNDERSTAND OR MISCHARACTERIZE THE PRACTICAL CONTENT OF THE NORMS AS "VAGUE" AND "NEGATIVE TOWARD BUSINESS".
The Joint View disparages the very concept of norms or standards by labeling them (at 10) "jargon", or "vague abstractions" and "words not being used in their ordinary senses" because they contain "no criteria for making objective evaluations". The Joint View admits that certain rights, such as "the prohibition of torture, and the right of a minor never to face the death penalty," are what the Joint View calls "standards in the true sense of the word" -- inviolable, and not subject to "trade-offs" or being balanced against other societal interests. But the IOE and ICC state that phrases like "adequate standard of living" are vague and meaningless ideals.
9 Obviously, all words have some indeterminacy of meaning in that they are abstractions from reality, and some words are more abstract and general than others. Disputes continue to exist in some quarters even about the Joint View’s preferred “true” rights, such as what constitutes "torture" (e.g. what amount of "coercive interrogation"?) and who exactly is a "minor" (under eighteen? Under twenty-one?). The "adequate standard of living" norm can similarly be judged by various criteria (and is indeed a standard, rather than a rule that provides e.g. that $x a day plus some other conditions automatically mean that the result is achieved). But the Joint View's position that these are "vague ideals" too easily morphs into a rationalization for avoiding concrete action or responsibility of any sort (as is evident throughout the Joint View's effort to argue that businesses have no human rights obligations whatsoever, and that only states have such duties). Moreover, the Joint View's allegation (at 20) that the Sub- Commission has "written legal rules that are unparalleled in their vagueness" is unfair; the language comes directly from the treaties and other international legal instruments. (In addition, the phrases are hardly less "vague" than phrases like "due process of law" or "equal protection" or others interpreted in the jurisprudence of U.S. and other nations.)
Thus, while the phrases may unfortunately remain a "mystery" to the ICC and IOE (Joint View at 23), they are not mysteries to most members of the international community of scholars, lawyers, governments, and civil society actors. The Joint View, by contrast, quotes out of context the Norms' reference in article 18 to reparations for non-compliance, without mentioning the same article's limitation that any such determination of damages, sanctions and, in fact, "in all respects," the Norms must be applied only "pursuant to law." (Moreover, any courts considering legal claims under the Norms will typically judge business conduct, as they judge other conduct, according to a standard of reasonableness.)
Human rights law, like other areas of law, has a normative or idealistic component. But the mere fact that perfect justice, or universal achievement of human rights is (Joint View, at 23) "impossible" to achieve in practice, does not mean that laws should be ditched or that the social effort to have laws is worthless. While the exact meaning of legal standards does need to be debated, and the standards will be achieved in various ways, they cannot simply be dismissed or ignored. While perfect adherence certainly is unattainable in the real world, the Joint View misses the points that (i) the Norms use the same phrases and definitions in referring to human rights as are contained in international human rights treaties and instruments; (ii) the international community has broadly agreed to these particular standards in these long-standing, widely accepted legal treaties, and (iii) responsible global businesses already adhere to such standards in practice.
It is thus highly misleading to call these standards mere "jargon", "rhetoric," or (Joint View, at e.g. 2) "artificial definitions," and to say that they "turn human rights into highly subjective, politicized claims.” The Joint View (at 28) persists in these allegations even when human rights organizations take care to distinguish between their own personal values and the broadly endorsed international legal standards. When the ICC and IOE reverse course and not only say that they "have each been working for over 80 years at all levels of society" to promote these economic and social rights, which they have just disparaged as vague and meaningless abstract ideals, then go even further and blame human rights organizations like Amnesty International and Human Rights Watch for "marginalizing" such rights, we have entered the realm of the truly absurd.
10 The various human rights in the leading treaties and instruments have been defined with progressively greater precision in jurisprudence over the past several decades, and the common denominators (as reflected in the Norms) are increasingly uncontroversial. For judges to apply these legal rights does not amount to judicial activism31 or "law-making by the judiciary" (as the Joint View alleges at 21). Instead, this falls within the classic judicial function of applying the law. For the Joint View to so thoroughly and misleadingly reject the content of these Norms exposes a real agenda that belies its defense of the Global Compact and other purely voluntary instruments: the IOE and ICC apparently think that businesses should not have to comply at all with such legal standards.
Specifically, the Joint View castigates the long-standing formulations of rights taken by the Sub-Commission from various treaties and international instruments as "extreme vagueness,” essentially accusing the UN Sub-Commission on Human Rights of inventing these out of whole cloth. For example, the Joint View (at 20) disparages any business obligation respecting the "right to development" as extremely vague. "What does the 'right to development' mean?", pleads the Joint View -- as applied to states or to business? (Recall that, as noted above, this is the only human right specifically referenced in positive terms in the Joint View's title, the one described on the Joint View's first page as the "foundation for the increased enjoyment of the economic and social rights of all individuals," and the focus of the entire third and final section of the ICC/IOE Joint View, which argues that "realization of the right to development depends on the promotion of business.")
Like the Joint View itself (at least at points), the Norms agree that the right to development is important. Unlike the Joint View, however, the Norms urge that businesses should thus be cognizant of such rights (about which most of them undoubtedly now know very little) and do what they can, within their sphere of activity or influence, to contribute to the fulfillment of such rights. The Joint View (e.g. at 20, 26) similarly criticizes such mainstay principles as the precautionary principle, sustainable development, and the important overarching concept of "within their respective spheres of activity and influence" as extremely vague, and "empty". While these standards are indeed general, they and the other obligations in the Norms are both elaborated in the Commentary and also the subject of voluminous and evolving scholarship and practice that inform these references.
The importance of the phrase "within their respective spheres of activity and influence" is worth a moment's further consideration. The Joint View (at 25) dismisses it as "empty" and tautological -- on the grounds that whatever we do is by definition within our sphere of activity and influence. But of course that doesn't mean that a small pizza restaurant in the Iowa will have the same influence in China as, say, a large multinational operating there. Again, this is a standard and not a rule, so questions of degree will remain, but the fact remains that distinctions on the basis of activities and influence can and should be made. (Just as clearly, no reasonable court or person would accept the Joint View's argument (at 26) that a company could successfully justify its actions by the mere fact that it has engaged in them).
31 In his recent book, Coercing Virtue: The Worldwide Rule of Judges (2003), Judge Robert Bork (though he takes the extreme position of denying the existence of international law and international human rights, and remains inexplicably blind to judicial activism he agrees with) reasonably defines activist judges as "those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of that law" (at 8).
11 The Joint View (at 20) sees CESCR rights as especially vague. A seventeen-year-old article (revealingly titled "Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights"32) by distinguished international legal scholar and economic rights advocate Philip Alston is (ironically) cited for this point -- with no mention of the significant elaboration of CESCR jurisprudence since that time (not least by the then- new Committee he was analyzing!). The Joint View similarly ignores the Norms' own contribution to further confirming the common understanding of CESCR obligations. As usual, the Joint View interprets the CESCR's obligations as applying only to states (despite the plain language at the outset of the treaty imposing obligations even on individuals to "strive for the promotion and observance of the rights" in the CESCR,33 and despite the fact that businesses are at root collections of individuals).
Contrary to the Joint View's suggestions (e.g. at 6-7), the Norms quite clearly recognize that operational and investment decisions are complex, that the "correct trade-offs" have not all been made, and that businesses should thus "use due diligence" (e.g. Commentary to art. 1) and in their "decision-making processes" shall consider the human rights, developmental, and environmental impact of decisions (e.g. Norms arts. 14-16). A foundational purpose of the Norms, in fact, is to be a practical aid to businesses and business leaders and managers in surfacing human rights issues, enhancing information in the "world of imperfect knowledge," and identifying the choices to be made. So they do not "ignore the need for to make balancing decisions" or "trade-offs" (Joint View, at 6-8). And, contrary to the Joint View (at 12), they do help build the capacity of private businesses by clarifying responsibilities and pointing the way toward issues to be addressed and concrete compliance alternatives.
The Norms by no means pretend to have all or even most of the answers, but do expect good faith engagement with the issues and a sincere commitment to promoting and respecting human rights, the environment, and sustainable development. There are indeed "difficult issues" regarding the exact scope of private actor human rights obligations, but the thrust of the Norms is to help identify and resolve some of the most important issues, including grounds on which some management decisions may be questioned or debated by and with other stakeholders.
But the fact that difficult issues may persist does not mean that there are no right answers at all, that no clear laws or standards exist, or that criticism of businesses for violations is thus always inherently subjective. To allege as the Joint View does (e.g. at 26-28) that mere subjective personal opinions about business decisions would justify a "vilification campaign" is, again, over the top.
Nor is it accurate to say (Joint View, at 32) that "the Sub-Commission's negative attitude toward private business is reflected throughout" the Norms. The point of the Norms is not to condemn all or even a significant percentage of transnational or other businesses as "human rights violators"; the point is to help clarify international norms pertaining to global business conduct and avenues of redress when such violations occur. Such attention is very much in the interest of global business as well as global society, since it is a prerequisite to effective, transparent, and fair global markets. The Norms appropriately laud, in language the Joint View quotes but downplays, the important contributions of global business to "economic well-being, development, technological improvement and wealth.” In calling for businesses
32 "Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights," 9 Human Rights Quarterly 332 (1987)(emphasis added). 33 CESCR, preambular para. 5.
12 to operationally implement the Norms through their own policies and processes, that potential positive contribution is recognized. Similarly, contrary to the Joint View's absurd rhetoric (at 32), saying that businesses should not engage in crimes against humanity or genocide is no more an "implied accusation" than the prohibition on genocide by "persons"34 is saying that all "persons" are guilty of genocide.
Indeed, the Norms are a valuable pro-business risk-management tool that can help proactively avoid liability and criticism for violating international standards. A major contribution of the Norms is to bring many of those standards together in a uniquely comprehensive, accessible, and convenient form that will assist businesses and all stakeholders in grappling with the issues and coming to higher-quality decisions. As inhabitants of legal and risk-management departments, and even of top executive suites of major multinationals will tell you, the Joint View is wrong to fear (at 19-21) that greater transparency about the activities of suppliers and supply chain partners will result in greater arbitrariness in the entering into, and in the performance of, legal contracts. Intelligent businesses clearly understand that the more information they have in this competitive and highly scrutinized global business environment, the better.
RESPONSE #3: THE NORMS WILL NOT "UNDERMINE" HUMAN RIGHTS.
This allegation turns on the discredited and discreditable view, corrected above, that the Norms somehow subjectively "re-define" well-established human rights, and on the allegation that they will thus "undermine the credibility of human rights law that so many have worked so hard to achieve" (Joint View, at 2). Notwithstanding the welcome solicitude of the two business organizations for international human rights, one might respectfully suggest that the views of the many experts in international human rights law that were considered in drafting the Norms probably deserve greater deference on this point. Greater risk to the credibility of the human rights regime would come from its failure to take cognizance of the human rights abuses that occasionally happen with the complicity of increasingly powerful non-state actors.
The solicitude of the two business organizations (e.g. at 28-30, 33) for the rights of businesses, even (or especially) businesses who might be accused of being human rights violators, is unfortunately less surprising. Lest governments think they have nothing to fear, the Joint Paper (at 21) reminds us that the Norms apply to "businesses that are owned or operated by the State, so Governments are also opened up to arbitrary enforcement actions.” The threats to the rights of business and governments apparently stem from the careless disregard of malicious human rights organizations willing to ignore whether or not violations have occurred in fact. (The Joint View quotes the Director of Human Rights Watch -- three times! -- to the effect that governmental legitimacy increasingly includes being seen to respect human rights, concluding (at 29) that this means such organizations don't care whether real violations have occurred or not!) The Joint View forgets that libel and defamation laws exist to protect the human rights of those wrongfully accused of human rights violations.
Admittedly, the Norms were not drafted to further insulate, but rather to make accountable, the growing global power of business. But the threatened deluge of dishonest, vituperative, and arbitrary lawsuits from human rights organizations becomes a rapidly fading spectre
34 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, e.g. art. 4, 78 UNTS 227 (entered into force Jan. 12, 1951).
13 when one recalls that the alleged vagueness of the Norms is nothing more than the existing language of international legal treaties and instruments and that the Norms reiterate the need for enforcement actions to be “pursuant to law” (article 18). Even if human rights organizations were as dishonest as the Joint View suggests, their own credibility (globally much higher than governments, and certainly businesses) would suffer in practice, dealing a death blow to their effectiveness. In fact, the Norms actually reduce arbitrariness by offering businesses and all parties a convenient common reference point that brings all the various key international standards together in one place.
While the IOE and ICC accuse the Sub-Commission of subscribing to an anti-business ideology, the criticism itself seems to spring from an extreme, laissez-faire ideology that fails to truly understand -- despite the occasional rhetorical tipping of the hat -- the significance of the principles at the heart of the Norms, such as consultation, transparency, and accountability for abuses. The authors of the Joint View criticize the Norms for supposedly reflecting a naïve understanding of the links between business and human rights; but they themselves may justly be accused of naiveté if they think that genuine corporate accountability is not part of the picture.
4. ALLEGATION: The Norms subject businesses to overreaching and intrusive regulation, including 'reparations' for non-compliance.
The Joint View objects to the fact that the Norms point to various ways in which their provisions could be enforced by various bodies, and especially to the idea that businesses be liable for damages and reparations for violations of the Norms (art. 18).
RESPONSE #1: THE IOE AND ICC OBJECT TO THE VERY TRANSPARENCY AND ACCOUNTABILITY IN BUSINESS THAT IS INDISPENSABLE TO EFFECTIVE AND SUCCESSFUL MARKET ECONOMIES THE WORLD OVER.
One 'upside' of the current age of globalization is the speed of information flow, and the enhanced communication and media and other scrutiny that makes it more difficult for companies or other actors to engage in sheltered human rights abuses or unethical actions in various corners of the world. Transparency and the resulting accountability are increasingly recognized as an indispensable prerequisite to the effective and successful functioning of market economies. Secrecy and corruption are the bane of such economies; disclosure and equal access to information and opportunities are the healthy tonic yielding smooth, clean, competitive market operations. The Joint View seems to recognize this at some points (e.g. at 33: "promotion of business inherently requires regulation"); but contradicts it throughout the remainder of its wholesale condemnation of the Norms.
Yet with the clear trend toward greater public disclosure of financial, social, and environmental information pertaining to company operations (at least for larger, public companies), the UN and other organizations do us all and the markets a service by explicitly endorsing enhanced monitoring of business activities. This will help channel rewards (e.g. better reputation, enhanced stock prices) to responsible enterprises, and punishments (worse reputation, depressed stock prices, even liability) to irresponsible enterprises that create counterproductive risks and externalities that threaten the legitimacy of business itself. The greater transparency encouraged by the Norms will not lead to greater "arbitrariness" in business relations or enforcement actions (Joint View, at 19-22), since businesses retain freedom of contract to decide who they do business with and transparency encourages
14 honesty. Simply put, such transparency will inform all such decisions with highly relevant facts regarding the integrity, prudent risk-sensitivity, and legal compliance of businesses and business partners. This is what is known as good business practice.
The Norms aim to support a world governed by the rule of law, and stable investment climates good both for business and for human rights, in which corruption is disfavored, contract rights are respected, and rights and responsibilities are clearly defined.
RESPONSE #2: IN OBJECTING TO THE IDEA THAT BUSINESS VIOLATORS PAY DAMAGES OR REPARATIONS FOR VIOLATIONS OF THE NORMS, THE IOE AND ICC SEEMINGLY REJECT THE ANCIENT LEGAL MAXIM THAT "FOR EVERY WRONG THERE IS A REMEDY", AND INDEED THE BASIC CONCEPT OF CORPORATE ACCOUNTABILITY ITSELF.
Article 18 of the Norms simply provides that businesses should compensate those wronged by their violations, while recognizing the reality that the mode of compensation may take many different forms (e.g. restitution, rehabilitation). Use of the internationally used word "reparations" in reference to one of these alternative modes may account for some of the Joint View's hostility to this article. Yet the article reflects such a universally accepted, non- controversial norm (except, apparently, by the IOE and ICC) that it was the only substantive article of the Norms (i.e. outside the definitional articles) on which it was deemed unnecessary to provide any additional commentary. Article 18 explicitly concludes with limitations, namely that "in connection with determining damages, in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law" (emphasis added). The thrust of this clause, to reinforce the need for respect for the rule of law, does not evaporate merely because the Joint View (at 21) omits the last half of this sentence. The implications of the Joint View's contrary position in practice is that wrongs deriving from human rights violations will be left without remedies. Again, do the IOE and ICC really want to adopt the position that businesses violating fundamental human rights are not accountable for their actions? Will that "promote business" (or human rights)?
The Norms (in art. 17) call on states to 'establish and reinforce the necessary legal and administrative framework" to ensure that businesses "implement" the Norms. This not only reflects the Norms firm emphasis on the continued responsibility of states (that the Joint View repeatedly ignores), but also tracks the implementation provisions found in other international instruments. It will help ensure that these Norms (respected in practice primarily in the developed world at this point) are harmonized across the world in a way that will benefit both business and society by creating a more level playing field.
The Joint View's statement (at 28) that the "main effect" of the Norms "in the socio-political arena will be to legitimate the vilification of private actors as 'Human rights violators!'" is itself irresponsible rhetoric. On the contrary, the Norms reject the rigid views of anti- globalization ideologues who view businesses as 'inherently evil". Instead, the Norms explicitly embrace the view of those who recognize that responsible businesses can both create much-needed social wealth and promote economic development and human rights.
In short, the Norms may be read with paranoia and a sense that business is being attacked, or they may be read with an open mind that recognizes the mutual interest of both business and society in greater transparency, accountability, justice, and fairness.
15 5. ALLEGATION: The Norms were not adopted through a transparent process.
RESPONSE: THIS IS PERHAPS THE MOST UNWARRANTED OBJECTION TO THE NORMS.
The Norms were adopted by the U.N. Sub-Commission only after a multi-year process that the IOE and ICC are well aware involved considerable time and resources, the participation of numerous NGO's and businesses, and attracted a considerable amount of attention. The various drafts of the Norms were published on various websites each year for comments, and hundreds of comments were solicited and incorporated from a variety of businesses, individual business leaders, unions, intergovernmental organizations, governments, and non- governmental organizations. The Joint View's use of human rights legal concepts like complicity to accuse the Sub-Commission of colluding with unnamed "private organizations" to deceptively advertise the Norms (Joint View, at 18) is risible.
While the Joint View (at 18-19) objects to a statement in one limited distribution early document that repeated verbatim a statement from the previous year in a totally public document35 that difficult issues are raised "as to the human rights obligations of non-state actors -- a subject that requires further study by the Sub-Commission," it takes as "non- transparent" the fact that subsequent and different reports, in subsquent years, after such study, do not include the same caveat. This is not a serious objection. The "difficult issue" was of course addressed by the various iterations of the Norms themselves, resulting in the Sub-Commission's best effort to restate the human rights obligations of business.
Yet despite all the lengthy scholarly and expert effort and input into drafting the Norms, their focus on restating existing international legal obligations, and their unanimous adoption by the Sub-Commission on Human Rights -- itself a body of human rights experts -- the Joint View mistakenly argues that the Norms have "no legal significance," have been "falsely advertised," were drafted without any "law-making authority", and are "neither 'U.N. Norms' nor authoritative" (Joint View, at 2, 17-18).
This misunderstands the nature of the UN law-making process, in which drafting efforts resulting from a multi-year process, substantial and carefully considered legal content, and adoption by a notable UN body like the Sub-Commission to restate existing legal obligations have significant legal authority in themselves (although it is true that they garner even greater legitimacy over time if and as they are adopted by progressively higher bodies in the UN hierarchy and through practical usage).
6. ALLEGATION: The Commission on Human Rights at its March-April 2004 session has the options of completely rejecting the Norms, rejecting the form but continuing the idea itself or through further Sub-Commission work, or adopting the Norms with or without modifications.
RESPONSE: THE SUB-COMMISSION RESOLUTION ADOPTING THE NORMS AND TRANSMITTING THEM TO THE COMMISSION36 ACTUALLY CONTEMPLATES ANOTHER COURSE OF ACTION WHICH IS INTELLIGENT
35 E/CN.4/2000/WG.2/WP.1, para. 11 (still available on the UNHCR’s website). 36 Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, Sub-Comm'n Res. 2003/16, UN Doc. E/CN.4/Sub.2/2003/L.11, at 52 (2003).
16 AND PRUDENT UNDER THE CIRCUMSTANCES, NAMELY THAT THE CAREFULLY DRAFTED AND CONSIDERED NORMS BE SUBJECT TO ADDITIONAL COMMENT AND EVENTUALLY CONSIDERED AT A LATER SESSION OF THE COMMISSION.
To the extent that the IOE or ICC or others believe that the Norms misstate or fail to accurately reflect international legal standards, those concerns deserve a full and fair hearing, as do other legitimate issues regarding the precise content and scope of business obligations with respect to human rights.
But as the IOE and ICC are aware, the Norms were the product of a lengthy process involving wide consultation and input. The Norms are no more perfect than any other human creation. But they certainly deserve more careful consideration, review, and perhaps amendment, rather than the dismissive rejection urged by the two organizations (Joint View, at 2). The Sub-Commission's resolution adopting and transmitting the Norms actually contemplated that the Norms would be broadly disseminated, and that further comments and input from governments, UN bodies, specialized agencies, NGO's, businesses, and other interested parties would be sought for the Commission on Human Rights session in March- April 2005. Such time is the minimum necessary for adequate consideration of the Norms.
CONCLUSION
The time for an adversarial relationship between the business and human rights communities is long past. As the Joint View itself points out in its Part III, there is more common ground than not in the mutual interests of the business and human rights communities, and the global community generally, in recognizing the important economic development role of businesses, the need for stable investment environments, and the contribution that both business and human rights can make to these common goals.
This complementarity is recognized by the Joint View itself (e.g. at 34): "Ensuring that the public has the highest attainable standards of health and of education are crucial for businesses, as well as for the individual holders of human rights." Continuing, the Joint View recognizes that:
[f]or another, businesses need . . . the prevention or resolution of violent conflicts. Moreover, the eradication of poverty, and the reduction of the glaring disparities between people within countries, are also critical to the promotion of business.
The Joint View shows the need for greater business attention to, awareness of, and education regarding these issues. The Norms, in turn, highlight that another mutual interest is the need to restrain those few global businesses complicit in human rights abuses.
The Joint View is also clearly correct that mechanisms like the Norms must be complemented by a "broader, positive strategy" for business as well. If, indeed, the IOE and ICC support the Millennium Declaration (as suggested at 35) and "strongly support greater efforts to secure the enjoyment of human rights, especially in the often neglected field of social and economic rights," they should support the process of elaborating the Norms as one of the best vehicles to date to achieve those ends.
17 It is hoped that, on reflection and consideration of the misunderstandings regarding both international law and the Norms highlighted herein, the IOE, ICC, and other business groups will endorse further review and comment upon the Norms. During that review, the concerns that the IOE and ICC have expressed, along with the concerns of still further organizations and businesses, can receive a full and careful hearing. An organic process of continued evaluation and discussion of the Norms is best suited to continual improvement of the Norms, in the interests of both business and human rights.
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